Who in the Law is the Ultimate Judicial  Umpire of European CommunityCompetences? 
The Schilling - - Weiler/Haltern Debate

Theodor Schilling, J.H.H. Weiler & Ulrich R. Haltern 

ISSN 1087-2221
© Theodor Schilling, J.H.H. Weiler & Ulrich R. Haltern
Printed in the United States of America in 1996
Harvard Law School
Cambridge, MA 02138
USA

TABLE OF CONTENTS

1.	“The Autonomy of the Community Legal Order: An Analysis of Possible Foundations” by Theodor Schilling
2.	“The Autonomy of the Community Legal Order -- Through the Looking Glass” by J.H.H. Weiler & Ulrich R. Haltern
3.	“Rejoinder: The Autonomy of the Community Legal OrderIn Particular: The Kompetenz-Kompetenz of the ECJ” by Theodor Schilling

The Autonomy of the Community Legal Order: An Analysis of Possible Foundations
Theodor Schilling* 

I. INTRODUCTION

	The single most far‑reaching, and probably most disputed, principle of the European Community (EC) and of the European Union (EU)1 is its claim to a legal order autonomous from Member State law. In this Article, I discuss four possible foundations of this claim to autonomy: the European Treaties as originally concluded,2 subsequent developments under these treaties, natural law, and public international law. I conclude that only the fourth possibility is a valid foundation for a limited notion of Community law autonomy.
	Autonomy can have different meanings. “Original autonomy” describes a particular legal order that is not derived from any other legal order. It is ultimately created by its own original constituent power and is absolute by necessity. “Derivative autonomy” indicates that the particular legal order, although derived from other legal orders, once it has been set up, is independent from the contents of those other orders. Derivative autonomy may exist in varying degrees. Finally, “interpretive autonomy” means that only the institutions of the particular legal order are competent to interpret the constitutional and legal rules of this order. This last meaning of autonomy is inherent in original autonomy, but not necessarily present in derivative autonomy. It may well be that a legal order has a large degree of derivative autonomy, but the legal orders from which it stems have reserved power for their own institutions to interpret at least the constitutional rules of the otherwise autonomous legal order. Such an order would have derivative autonomy, but no interpretive autonomy.

II. FOUR POSSIBLE BASES FOR LEGAL AUTONOMY OF EUROPEAN COMMUNITY LAW

A. The European Treaties as Originally Concluded

		In order to create the European Union, the Maastricht Treaty, according to article R(1)(1), had to be “ratified by the High Contracting Parties in accordance with their respective constitutional requirements.” Older treaties that established the three European Communities were ratified similarly.3 Furthermore, this same procedure, ratification by all present and future Member States of the EC, was used to approve accessions.4 Even if Community institutions were involved in the preparatory phase of the amending and accession treaties, according to articles 236(2) and 237(1) EEC, and will be involved in the future, according to articles N(1)(2) and O(1) of the Maastricht treaty, the final amendment or accession treaty must still be ratified by all the Member States as stated in the successive paragraphs of these treaties.5 
		The EEC Treaty was commonly considered the constitution of the EC/EU, as is the Maastricht Treaty now.6 This is an acceptable and correct description of the function of these treaties within the Community framework.7 This terminology, however, may be misleading because it suggests that the constitution, and thus the Community, is autonomous. Such an original autonomy of the European Treaties presupposes that these treaties were ordained by an original constituent power.
		“Original constituent power” (pouvoir constituent originaire)refers to the power that ordains the “historically first constitution.” Such a constitution severs the umbilical cord that, in the case of an evolving legal order, connects legal changes to the pre‑existing laws. It is non‑derivative in that it does not owe its existence to a pre‑existing constitution. Such an event cannot be simply encompassed in an existing legal order. Instead, it marks the beginning of a new one. This beginning can also be described by the rather theological phrase creatio ex nihilo, a power ascribed by the Abbé de Sieyès during the French revolution to the constituent power of the nation. If one prefers a cosmological metaphor, this constitution is the big bang out of which the new legal order develops. It is a revolution replacing the previous historically first constitution with a new one.
	Such a legal revolution is quite independent of any civil strife, military  rebellion, coup d’etat, or similar unrest. Rather, the revolution occurs when a constitution of a new or existing political entity is enacted in a different way from that prescribed by any prior constitution. This new constitution is ordained, by definition, by an original constituent power that has acted in a revolutionary manner, i.e., by violating the existing constitutional order.
	The European Court of Justice [ECJ] sees Community law as “an autonomous legal order.” The type of autonomy the ECJ has in mind can be deduced from its Opinion 1/91. There, the ECJ declares that some provisions of the European Treaties are “the very foundations of the Community” and cannot be changed at all, not even by the procedure laid down in the treaties for their amendment, such as the process under article N(1) of the Maastricht Treaty, which differs from the usual model of intergovernmental diplomacy only in nuances. The protection of some provisions from amendment is a specific characteristic of historically first constitutions. Evidently, the ECJ considers the European Treaties to be such documents.
	Similarly, some European law scholars base their theories on the assumption of an autonomous legal order established by an autonomous power. Thus, the European Treaties are constituent acts of the Community and similar to a constitution in its proper sense. The consent of the Member States’ legislatures to these treaties is seen, consequently, as a definitive, constituent act, facilitated by (but not contingent on) national constitutional provisions providing for the transfer of sovereign rights to international organizations. In this sense, the conclusion of each European Treaty is equated with the creatio ex nihilo of a historically first constitution.
	Although an original constituent power of the European Community could have acted in various ways to set up the European Treaties, e.g., through constitutional convention or referendum, only one method is plausible given the historical facts. The legislatures of the Member States, as representatives of the original constituent power, could have ordained each treaty as a historically first European constitution. Theoretically, the legislatures of the component parts of a whole can exercise the constituent power of the whole. The question remains whether the legislatures of the Member States did exercise such a power in ratifying the European Treaties. Ordinarily, national legislatures ratifying an international treaty do not exercise original constituent power, even if that treaty establishes an international organization. Therefore, it is necessary to determine criteria for choosing between the two possible interpretations of the acts of the legislatures: ratification of an international treaty or exercise of constituent power.
	A first and powerful indication that the Member States legislatures acted as an original constituent power is that the instrument to be ratified contained rules for its own ratification. It is even more convincing if these rules are different from those regularly governing the ratification procedure for international instruments at either the internal level (e.g., super‑majority) or the treaty level (e.g., majority decision). By respecting the rules of the instrument and by acting according to them, the legislatures of the contracting parties show their sense of independence from their ordinary procedures. Indeed, they cannot be bound by their own processes when acting as part of an original constituent power, i.e., in a revolutionary way.
	A second indication of the role of the legislatures as a constituent power is the language of the instrument itself. If the instrument is called a “Constitution” or a “Basic” or “Fundamental” law of the entity to be created, and particularly if it indicates that the contracting parties are to be subordinated to this entity, then it may be assumed that the legislatures enacted the agreement in their capacity as part of an original constituent power.
	A third indication, although less powerful, is found in the drafting process. If the instrument is drafted through the usual diplomatic channels, it is less  likely to be ratified as a historically first constitution than if it is drafted by a constituent group.
	Given these criteria, there is no indication that the legislatures of the Member States were acting as the original constituent power of the Community when they ratified the European Treaties. The European Treaties were drafted through the usual diplomatic channels and finalized by intergovernmental conferences. Each one is clearly labelled a “treaty” and the structure of the treaties is consistent with this label; every treaty begins by listing the heads of state of the participating countries, who have decided to enter into the treaty, and the designated plenipotentiaries, who are reported to have agreed to the treaty; and the ratification provisions, article R(1) Maastricht Treaty, article 247(1) EC, article 99(1) ECSC, and article 224(1) Euratom, refer to the “respective constitutional requirements” of the Member States. Nothing in the ratification procedure indicates that the document to be ratified might be anything but a treaty. Under these circumstances, the umbilical cord between the constitutions of the Member States and the European Treaties has certainly not been cut by the ratification procedure. Rather, this procedure expressly prescribes it. Therefore, there is no indication that the European Treaties might have been a constitution ordained by a constituent power of the Community.
	Given that no original constituent power ordained the European Treaties as a constitution, the ECJ’s view that “the very foundations” of the European Treaties are entrenched loses its force as a statement about the constitutional nature of the treaties. In national constitutions, the rare provisions not subject to amendments are protected to shelter decisions of the original constituent power against later changes. As the European Treaties were not enacted by such a power, entrenching certain provisions serves no purpose and the ECJ’s assessment of autonomy cannot stand.

B. Subsequent Developments Under the European Treaties

	Despite the absence of an original constituent power at the formation of the European Treaties, the Community legal order could have evolved to give the treaties the autonomy they originally lacked. Theoretically, one could construct a model that would explain such a development. The people of Europe, which would have to be the constituent power in a democratic Europe, need only to adopt the existing text of the treaties as their own constitution. As  the law cannot dictate the way in which the original constituent power may act, there is no need for a constitutional convention, a referendum, a vote, or any such formal mechanism. Rather, an original constituent power may act in the way customary law is formed: by developing a custom and a corresponding opinio juris over time. Under such a model, the Member States as High Contracting Parties, the original legislators of the European Treaties, would be replaced as the source of treaty provisions by the European people exercising their constituent power. In that way, the treaties might become a constitution without any amendment. In contrast to the European Treaties, concluded by the Member States as High Contracting Parties, the legal force of such a treaty‑constitution would not stem from the constitutions of the Member States. The constitutions of the Member States would no longer be the only instruments in Europe based on a historically first constitution. As a result, the treaty‑constitution could subordinate the constitutions of the Member States whose applicability would then depend on the treaty‑constitution. In the alternative, the adoption of a treaty‑constitution might lead to an awkward juxtaposition of different, unrelated historically first constitutions, each potentially applying to the same facts. In either case, the emergence of such a treaty‑constitution would be a revolution within the legal meaning of the word. One must first, however, locate certain crucial indications that such a transformation has occurred.
	To search for the necessary evidence, the academic thesis of a “constitutionalization” of the European Treaties examines primarily the case law of the ECJ and its acceptance by the courts of the Member States. As shown in the prior discussion, the opinions of the ECJ describing the Community as an autonomous legal order were unacceptable interpretations of the original treaties. In the present discussion, however, the case law of the ECJ can be seen as a subsequent development possibly indicating the evolution and ultimate adoption of those treaties as a constitution. It is no longer the legal merits of the conclusions that are important, but the value of the statements as indicators of the development of a custom and of an opinio juris among the people at large exercising its constituent power. The views of a rather secluded body like the ECJ are a weak indicator of the opinion of the people. To find sufficient evidence of an opinio juris, according to the “constitutionalization” thesis, the courts of the Member States must support the views and follow the decisions of the ECJ.
	The courts of the Member States, including their appellate courts, do largely accept the views reflected in the case law of the ECJ. But nearly all of the appellate courts balk at the claim of the ECJ that the European Treaties are the constitution of an autonomous legal order. In their most recent decisions, some of the constitutional courts of the Member States underscored the international character of the European Treaties. As no other indicators of opinio juris come to mind and most of the superior courts of the Member States do not support the relevant case law of the ECJ, the European Community fails the second prong of the test of the “constitutionalization” thesis.
	There are, in fact, some indicators that point in the opposite direction, away from constitutionalization. Importantly, the European Treaties continue to be amended by treaties and provide for future amendments. The minor role that article N(1)(2) of the Maastricht Treaty gives the European Parliament in preparing the draft of amending treaties cannot be an indication that the European people has adopted the treaties as a constitution. In addition, it cannot be claimed that there is, with the European people, a custom supported by a common opinio juris that regards the European Treaties as the constitution of an autonomous Europe. While some Europeans take this view, there are as many who do not share it. This is not enough to create a custom. Subsequent developments under the European Treaties, therefore, do not support a claim to original autonomy of Community law.
	It has been argued that this conclusion, based on the Kelsenian approach, does not give adequate weight to Community law and does not correctly describe the relationship between Community and national laws. Those arguments led to efforts to avoid the Kelsenian approach by using a perspective informed by the Hartian theory of law, based on the rule of recognition.
	The Hartian approach differs from the Kelsenian one insofar as it looks at national and Community laws not from the viewpoint of an external observer, but from the inside, from the vantage point of a national official or judge who is the addressee of the norms of those legal orders. Proponents of this approach claim that one can determine the reality of the relationship between legal orders without formally characterizing this relationship. They claim that the nature of the relationship between national and Community laws can be adequately understood without reference to the concept of autonomy, because the rule of recognition “possesses a ‘penumbra of doubt.”’ Although by following this approach one cannot deduce that the Community legal order is autonomous, one might achieve a similar result. In fact, this approach could demonstrate that, to understand the new system formed by Community and national laws, the question of autonomy is neither of theoretical nor of practical importance.
	When applying the Hartian theory to the context of the European Community, this demonstration is complete by simply stating that national officials, and judges in particular, do apply Community law and do generally accept its supremacy over national law. There, under the Hartian theory, the case may rest. This way of looking at the interaction of Community and national laws has a certain appeal. For example, a judge of the German Federal Constitutional Court suggested extra‑judicially that both the German Basic Law and the European laws are sufficiently flexible that if they are interpreted reasonably, one could avoid serious conflicts between them.
	The weakness of this perspective lies in its appeal to a reasonable interpretation of the respective laws. Although all conflicts between national and Community laws assuredly could be avoided by a “reasonable interpretation,” in the long run, clear conflicts will arise. Such conflicts are basically power conflicts between the Community institutions striving for autonomy and the respective national (or sub‑national) institutions trying to rein them in and secure the competences they believe to be their own. Those conflicts would arise even if the Community is, in some sense, just a composite of the Member States acting together.
	The claimed advantage of the Hartian view over the Kelsenian view in explaining the reality of the relationship between Community and national laws is, however, lost when the legitimating effects of the two perspectives on the Community legal system are compared. The Kelsenian view looks to the historically first constitution and then to actions of the legislatures of the Member States. The legitimacy of the Community legal system is therefore traced back to a decision by the original constituent power, i.e., the European people, and on the subsequent actions of a derivative constituent power, i.e., the democratically elected legislatures of the Member States. By contrast, under the Hartian view, the legitimacy of Community law can only be traced to its application by judges and other officials. Hart’s rule of recognition can only provide a professional legitimacy, which is insufficient in itself to meet democratic standards.
	While the Hartian model of a legal system may adequately describe the daily applications of law in the Community when the question of autonomy is not seriously involved, it does not answer, and it is not meant to answer, the question of the autonomy of the European Community legal system and of its ultimate position within the European framework. The question of the relationships of interacting legal systems does not vanish simply because it is not addressed by the Hartian model. Rather, this question is of primary importance to Community law legitimacy. To pretend that the Community had an autonomous constitution even if it did not could lead to very serious conflicts. In view of the undisputed legitimacy problems of the European Community, the question of Community law autonomy cannot be dismissed. Therefore, in the present context, the Kelsenian approach is preferable because it addresses the necessary question of autonomy. As discussed, however, the interactions between the Member States and the Community do not fulfill the Kelsenian requirements for the development of an autonomous constitution.

C. Natural Law

	It remains to be seen whether it is possible to accommodate the case law of the ECJ and the academic view of the European Treaties as an autonomous source of law within a system other than a positive law system, e.g., a natural law system. One natural law on which the view of the European Treaties as an autonomous source of law might be based is the law of integration. The league of European states has been described as an integration since its inception. In fact, it has been said that the theory of integration is the most important extra‑legal contribution to the body of work on the  Community. The concept of integration, it is claimed, explains the specific characteristics of the Community as a dynamic process without the need to subsume the Community under a conception of sovereignty.
	The law of integration can be conceived of as a natural law rule, by viewing it either as a moral, ethical rule or as a physical, socio‑economic rule. First, as a moral rule, integration would have to be seen as an abstract good. Such a view is very much a part of the legal tradition of the European Community. For a considerable length of time, “the very idea of the Community [and hence of integration] was associated with a set of values which . . . could captivate the imagination, mobilize broadly based political forces, counteract the powerful even captivating but often abused pull of nationalism.” Underlying these values were the ideals of peace, prosperity, and supranationality. “Supporting the Community was to ‘Do the right thing.”’ This support could therefore be seen as a moral good, giving rational actors an objective reason to act.
	Second, according to one functionalist perspective, integration, as a socio‑economic rule, consists of a series of successive developmental steps. This version underscores that once economic integration is achieved, political integration follows almost automatically. This view comes close to claiming knowledge of a socio‑economic, amoral, natural law. It presupposes that the process of becoming an integrated community becomes inevitable after a certain point (the “spill‑over effect”) and therefore irreversible. This theory explains the supposed autonomy of the European Community from the Member States once the point of no return has been reached. Once the Member States are unable to reverse integration as a result of this socio‑economic law, then surely the European Community, as an integrated body, has become autonomous. Such a socio‑economic law is thus part of a natural order. This idea “can be extended to include . . . those events having a cause‑and‑effect relationship . . . . [S]ome social laws, such as the ‘laws’ of economics, can be seen as expressions of ‘natural law.”’
	Once the law of integration has been characterized as a natural law in either the moral or the socio‑economic sense, one must then explain how such a law can influence or determine the positive law the courts apply. All contemporary natural law theories base such an influence on the relationship between morality and law. But only the strongest view of natural law posits an identity in legal and moral goods and can thus conceive of the influence of a law of integration over the positive law of the Community. Under this view, enacted law is at most some evidence of a higher, natural law. Therefore, integration as a moral good is also a legal good. This strongest view of natural law, however, has not been defended in post‑World War II jurisprudence. In addition, it is incompatible with democratic lawmaking.
	Weaker views of natural law and the relationship between morality and law function only negatively and not positively. That is, an unjust proposition is not a law, but every just proposition does not have to be a law. The weaker versions of natural law are, thus, insufficient for viewing the European Treaties as an original, autonomous source of law. Therefore, the autonomy of European Community law cannot be premised on a moral law of integration.
	In contrast, integration viewed as a socio‑economic law has no inherent morality, but is simply a question of cause and effect. As such, it does not necessarily serve any good. Such a law must rely on its own methods of enforcement, presumably on the political decisions of the legally competent bodies to proceed with the integration process. Although the functionalist theory of integration assumes that the inevitability of integration is expressed by the political actions of human actors, it could also be expressed by the ECJ’s application of a law of integration absent any basis in positive law. Within the boundaries of any legal order, however, one cannot argue for judicial decisions that exceed the discretionary powers of the courts. As such, the question of a socio‑economic law of integration becomes irrelevant in the present context. Thus, neither view of natural law provides a feasible foundation for the autonomy of the European Community.

D. International Law

	The ECJ has consistently held that international law has no role within Community law. The European Community, however, was established by a series of treaties concluded under international law by the (future) Member States. At least at its inception, the European Community was clearly a creature of international law. As there are no indications that a revolution in its legal sense has subsequently occurred, as discussed above, the European Treaties are still creatures of international law. The relationship between the laws of the Community and of the Member States is, under this analysis, but one instance of the relationship between international and municipal law. Irrespective of the differences in the various theories of this latter relationship, the fundamental tenet is that once ratified, and as long as they remain valid, international treaties are objective law binding on the contracting parties. Such treaties undoubtedly derive from the national legal orders of each contracting state that determine the conditions under which these parties may enter into a treaty. The treaties are, nonetheless, autonomous in the sense that they are not continuously dependent on the legal orders from which they are derived. Once concluded, they take on a life of their own. The strongest expression of this autonomy is the fact that each contracting state must adapt its respective municipal legal system, i.e., including its constitution, to the provisions of the international treaties it concluded. It follows that the European Treaties, as international treaties, are binding on the Member States and have derivative autonomy.
	The decisive question, then, is whether the European Treaties have interpretive autonomy as well. In other words, one must determine whether only Community institutions are competent to interpret Community law, including the European Treaties themselves (strong interpretive autonomy) or whether the Member States have some say in that matter (weak interpretive autonomy). General international law does not provide any guidance on this question because it does not know of international institutions. The accepted method for the interpretation of international treaties, in the absence of treaty institutions, is autointerpretation by the contracting states. The European Treaties, however, have created institutions, in particular the ECJ, that, according to article 164 EC, “shall insure that in the interpretation and application of this Treaty the law is observed.” The question remains though as to the influence of these institutional arrangements on the power of the Member States to interpret the European Treaties themselves. Various articles have discussed the similar issue of the influence of federal institutions in a federation. They argue that a federal constitution delegating the power to enact certain provisions to a federal institution, by the same token, authorizes the institution to decide on the legality of these provisions. This reasoning would apply, a fortiori, to a court that has been delegated the powers to interpret certain provisions. It has been said “that it is the proper function of the federal constitution, umpired by the federal judiciary, to strike the appropriate balance between the federation and its component entities.” Under this analysis, it would be the ECJ that has the final word on all legal questions concerning the relationship between the Community and the Member States. This is the argument for interpretive autonomy.
	This argument, however, is based on a generalized interpretation because it assumes that all relevant provisions in federal constitutions have to be construed in the same way. As such, the argument must give way whenever a specific instrument demands a different interpretation. The vital issue, then, is the proper interpretation of the European Treaties as instruments of international law. Such an interpretation must be based, according to article 31(1) of the Vienna Convention on the Law of Treaties, in essence codifying existing customary norms, on “the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
	The relevant terms of the EC Treaty are contained in articles 164, and 169‑83. The provision most relevant to the discussion is article 171, according to which a Member State, “[i]f the [ECJ] finds that {the State} has failed to fulfill an obligation under this Treaty . . . shall be required to take the necessary measures to comply with the judgment of the ECJ.” According to the ordinary meaning of this provision, the ECJ is the ultimate umpire of the European system. This is equivalent to granting interpretive autonomy to the Community and amounts to judicial Kompetenz‑Kompetenz.
	Article 31 of the Vienna Convention also requires an examination of the language of the provision in context, in particular, of the object and purpose of the treaty. The purposes of the EC Treaty, as stated in article 2, relate to the activities of an economic community and, therefore, are arguably restricted to these activities. It follows that the European Treaties should not be interpreted as granting the Community unrestricted powers, in particular Kompetenz‑Kompetenz. But such a conclusion is at odds with a Kompetenz‑Kompetenz of the ECJ over questions of the respective competences of the Community and the Member States.
	It is possible to reconcile the ordinary meaning of article 171 EC, giving the ECJ de facto Kompetenz‑Kompetenz, and the purposes of the EC Treaty that limit the Kompetenz‑Kompetenz by distinguishing a material authorization to interpret Community law from a formal one. Whereas a formal authorization encompasses the ultimate power to decide, rightly or wrongly, a question of interpretation, a material authorization is restricted to “rightly” deciding that question. In general questions of Community law interpretation, the ECJ’s authorization is a formal authorization; its decision is final. In questions concerning the respective competences of the Member States and the Community, however, the ECJ’s power of interpretation is, in accordance with the purposes of the EC Treaty, a material one only; the binding force of the ECJ’s interpretation is restricted to the “right” interpretation of Community law. It follows that decisions of the ECJ in questions of respective competences have, for the courts and the administrative authorities of the Member States, only persuasive authority.
	The international law interpretation of the European Treaties thus leads to the conclusion that the ECJ is not the ultimate umpire of the system. The claim to interpretive autonomy fails because the Member States have preserved their power to autointerpret these treaties. Moreover, this interpretation is buttressed by examining the presumptive will of the Member States in concluding the European Treaties. “No Member State can . . . be held to have included, in the partial transfer [of sovereignty to the Community], power for the Community to legislate in infringement of rights protected by its own constitution.” The constitutions of the Member States generally do not allow the transfer of Kompetenz‑Kompetenz to the Community. Therefore, the Member States, individually, must have the final word on questions concerning the scope of the competences they have delegated to the Community.
	At the same time, the institutional arrangements of the Community are supposed to limit the scope of autointerpretation of the individual Member States. The procedures provided for in article 177 and in articles 169 and 171 EC must be scrupulously respected. The ECJ clearly is authorized by those provisions to interpret the European Treaties. It is only after the ECJ has decided a case that the Member States can use autointerpretation. In order to fully take into account the institutional arrangements of the Community, however, another restriction on the power of the Member States to autointerpret the European Treaties is necessary. It is basically up to the Member States to choose how they exercise the final word on interpreting the European Treaties. The institutional position of the ECJ, however, demands that the final word be exercised only by the highest courts of the Member States.
	This international law interpretation of the European Treaties incorporates the restricted autonomy the treaties grant to the Community under international law and the claim of the Member States to autointerpretation. One could object that this view is incompatible with the rule of law. Indeed, the ECJ has used the rhetoric of the rule of law very effectively to seek compliance with its rulings. It portrays Member States not complying with directives as lawbreakers who could not oppose their breach of law as individuals. Such an objection would be misconceived. The rule of law is served as long as the decision of any competent court is respected. The discussion above refutes the exclusive competence of the ECJ. It follows that, in questions concerning the relationship between the Member States and the Community, the ECJ’s reliance on the rule of law can only be rhetorical. This rhetorical nature of the criticism has apparently been recognized by the German Constitutional Court. In describing the obligations of the ECJ flowing from the Maastricht Treaty, the German  court has laid the groundwork for determining what the rule of law requires and for eventually holding the ECJ in breach of that rule.

III. CONCLUSION

	The European Treaties cannot be considered a historically first constitution at the time of their conclusion, nor have they developed into such a constitution over time. Likewise, a natural law of integration does not provide the theoretical basis for the claim of autonomy of Community law. The only basis on which Community law could claim a certain autonomy from the legal orders of the Member States is international law. This autonomy, however, is derivative and does not include complete interpretive autonomy. As a consequence, as to questions of the respective competences of the Community and the Member States, judicial Kompetenz‑Kompetenz remains with the latter and their courts. Those who would like to remedy these shortcomings, as they might be perceived by advocates of the supremacy of Community law, must be reminded of the difficulties involved in drawing up a historically first constitution for Europe based on the decision of an original European constitutent power.

The Autonomy of the Community Legal Order --Through the Looking Glass

J.H.H. Weiler & Ulrich R. Haltern

I.  Introduction

	Surely one of the most embarrassing, and hence endearing moments in the human condition occurs when the proverbial little boy cries out:  “The Emperor is Naked!”  The embarrassment is not only that of the Emperor whose dignity comes crashing down with his clothes, but more exquisitely that of his subjects whose own gullibility and obsequiousness are fully exposed.  Our laughter, that of the spectators, is directed, one hopes, in equal measure at ourselves and at the Emperor.  Our civilization cherishes, or ought to cherish, such “little boys”.
	Theodor Schilling, in The Autonomy of the Community Legal Order -- An Analysis of Possible Foundations, attempts to be such a “little boy” by taking on, to use his own language in the opening phrase of his piece, no less than “[t]he single most far-reaching, and probably most disputed, principle of the European Community ... its claim to a legal order autonomous from Member State law.”  In his attempt to explore the foundations of this claim to autonomy, he pricks one of the biggest hot-air balloons of European law -- its alleged “new” constitutional garb -- and exposes, if not its nakedness, at least its comfortable old togs of international law.  Since most of us have been party to the “constitutional” celebration of Community law, we are all invited to join in the merriment.  We would like to.
	But there is one situation which, arguably, is even more embarrassing and, accordingly, more endearing.  This happens when the little boy cries out, “The Emperor is Naked!”, and it turns out instead that it is he who has no clothes on.  We fear that Dr. Schilling may have placed himself, unwittingly, in that position.
	The bulk of the Schilling article is dedicated to the theoretical exercise of exploring the foundations of the autonomy claim:  are these foundations constitutional or international?  But fear not:  this is not theory merely for the sake of theory.  There is a distinct political context to the heavy theorizing.  It comes in the very final passages of Schilling’s piece, in what he himself describes as “The Decisive Question.”  Schilling also makes no bones that his article is meant to be instrumental in the battles surrounding this “Decisive Question.”
	What, then, is the “Decisive Question”?  It is the most recent flash point (or “flash-in-the-pan”) in the evolving relationship between Community law and Member State law.  The supremacy of Community law over, and the direct effect of Community law within, the Member States legal orders, once all the rage, are now well-established.  The are accepted by both the constitutional and the international law accounts of the system and confirmed, by and large, in practice.  But, as all interpretative communities at least verbally affirm, the Community is a system of “attributed,” “enumerated,” “limited” competences. The writ of the Community is thus supreme only when enacted within its jurisdictional limits.  An ultra vires Community measure should not be and would not be supreme.  The “Decisive Question” is, therefore, as follows:  when the legality of a Community measure is challenged on the grounds of ultra vires who, in law, gets to make the final determination?  Is it the The European Court of Justice [ECJ] or the (highest) courts of the individual Member States?  Since the jurisdictional limits laid out in the European Treaties are notoriously difficult to identify with precision, the question of who gets to decide is of tremendous political importance for the relationship between the Community and the Member States. 
	The standard answer to the “Decisive Question”, the “imperious answer” if you wish, put forward by most commentators as well as by the ECJ, is that the final determination of this issue, as with any other legal challenge to the legality of a Community measure, rests with the ECJ.  The ECJ has the competence, an exclusive competence, to invalidate a Community measure on any ground, including the ground that the measure was ultra vires.  We may call this Judicial Kompetenz-Kompetenz:  the competence to declare or to determine the limits of the competences of the Community.
	This issue, dormant for years, was suddenly thrown into the limelight by the famous (or infamous) 1993 Maastricht Decision of the German Federal Constitutional Court.  While conceding that the ECJ had a role to play, the German Court held that from a German constitutional perspective, the ultimate authority to determine this issue rested with domestic law.  Indeed, any German Court or other emanation of the State had a duty not to apply Community measures which in their eyes were ultra vires.  In the case of a dispute, the German Federal Constitutional Court itself would have the final say.  The German Court arrived at this conclusion based on a reasoning of German Constitutional law.  Though the reasoning has not met with uniform approval, to put it mildly, even among German constitutionalists, we do not plan to take issue with it in this essay.  After all, if the German Court understands its authority as flowing from, and its loyalty flowing to, the German Constitution, it could hardly hold otherwise if it came to the conclusion that this is what the German Constitution mandated.  Other Courts, some with considerably longer traditions of constitutionalism and democracy than their German counterpart, have upheld positions that they thought were mandated by the genesis or function of their constitutions, even if this created or sanctioned a violation of the international obligations of their respective States.
	Some German courts, taking their cue from the German Federal Constitutional Court, have already set aside Community law that in their eyes was ultra vires.  If the German Constitutional Court itself were to do this, it would clearly be illegal under Community law. Schilling, however, does not reason ostensibly from a national constitutional law perspective, though he clearly supports the German result.  Schilling tries to render this constitutional swine --  if that is what it is -- kosher by relying on public international law, his preferred foundation for the European Community legal order.  His conclusion is uncompromising:

	The international law interpretation of the European Treaties thus leads to the conclusion that the ECJ is not the ultimate umpire of the system ...  Therefore, the Member States, individually, must have the final word on questions concerning the scope of the competences they have delegated to the Community.
	The stakes for Schilling are high:  the “Rule of Law” itself is at issue.  In Schilling’s eyes, it is mere rhetoric when, on the “Decisive Question,” the ECJ relies on the principle of the Rule of Law.  The “Truth” has been recognized by the German Constitutional Court, which according to Schilling, does not merely constitute, in law, the “final umpire of the system,” but is also the clarion of the Rule of Law itself and has positioned itself, with the help of Schilling, “for eventually holding the ECJ in breach of that rule.”
	We confess to finding these conclusions, and the reasoning on which they are based, puzzling.  They evoke a reaction not unlike that of Alice when she peers into the Looking‑Glass House: “that’s just the same  ...  only the things go the other way.”
	Whatever the merits, or lack thereof, of a constitutional foundation for European law, the European Court, in adopting its position on judicial Kompetenz-Kompetenz, was not following any constitutional foundation but rather an orthodox international law rationale.  In other words, even if we agreed with Schilling that international law provided the only basis on which to found the Community legal order, we would argue that this very foundation in international law mandates the opposite conclusions than the ones he reaches:  The European Court does hold the position of “ultimate umpire of the system.”  Furthermore, international law certainly would not give the States, individually, the right to have the final word on questions concerning the competences of an international organization, just as it would not give such decisional finality to a State over any aspect of a Treaty to which it was party.  Regardless of whether the position of the German Constitutional Court is justified under German constitutional law, it is not defensible under public international law.  At most, all Member States of the Union, acting in unison, usually by following the Treaty-amendment procedure, may determine, amend, and modify the Treaties, including their jurisdictional reach.  Ironically, as we argue later in this article, a constitutional law approach to the Community legal order would be more solicitous to an involvement of national jurisdictions in the determination of the jurisdictional limits of the Community legal order.
	This, then, is how we plan to proceed.  We shall say first a few words on Schilling’s “constitutional-international” analysis -- a few words only because, for the purposes of this essay, we are happy to remain agnostic on this issue.  We agree with much of what Schilling says and our disagreements are mostly unrelated to the so-called “Decisive Question.”  We will thus be willing to accept, at least arguendo, his international law characterization of the Community legal order as the premise for analyzing his “Decisive Question.”  On this basis we then proceed to analyze with some care the reasoning on which Schilling bases his conclusions.  Lastly, we shall conclude by addressing, in a somewhat less doctrinal manner, the stand-off between the ECJ and the German Constitutional Court on the issue of judicial Kompetenz-Kompetenz.

II.  The Community Legal Order:  Constitutional or International?

	Schilling goes to great lengths to debunk the alleged constitutional foundations of the Community legal order.  One could, of course -- and, in our view, one should -- call into question the very dichotomy between “the international” and “the constitutional.” implicit in Schilling’s argument.  The blurring of this dichotomy is precisely one of the special features of the Community legal order and other transnational regimes.  But our critique of the Schilling piece does not go, as stated, to his whole argument.  We are willing to share with him the constitutional-international distinction and even go further and share with him much of his critique of the constitutional-foundation thesis.
	The European legal order was begotten from public international law in the normal way that these things happen:  there was a communion among some States -- the High Contracting Parties -- which negotiated, signed, and subsequently ratified the constituent Treaties which brought into being, first the nascent European Coal and Steel Community and then, its twin siblings, the European Economic Community and Euratom.  We know their progeny today as the three-pillared European Union.  This manner of conception would, in the normal course of international life, determine the genetic -- as well as legal -- code of the new infant:  an international organization with a separate legal personality but with no measure of independence or power to eradicate its subordination to its States parents and its subjection to the classical laws governing the States’ treaty relations.  The States, like the Olympian Gods, would forever remain ultimate Masters of their creation.  The Germans have a nice phrase for this: the Member States are called the “Herren der Verträge.”
	This mastery of the States over their offspring does not prevent, as with other Almighties, acts of self-limitation:  In the begetting of an international organization through an international treaty, the High Contracting Parties may decide to bestow on their offspring the power to make decisions which will bind them.  They may even privilege a few States in the process.  But, at any point, as long as the Member States act in unison, they may change the status or the capacities of the organization.  The basic principles of the law of treaties would apply to privilege the makers of the treaty at all critical junctures in the life of a treaty -- treaty-making, amendment, interpretation and termination.  As masters of the treaty, states are also masters of the organization.  Thus, for example, not infrequently will states amend a treaty -- including one setting up an international organization -- in violation of its specific amendment procedures.  As long as the amendment is in accord with the collective will of all parties, it would be considered valid.  Likewise, should there be a disagreement over the interpretation of a clause within a treaty, an agreement of all parties will normally be the final word as either an authentic interpretation or a de facto amendment.
	There is a different manner in which disparate states may bring into being a new legal order, by “constitutional” fusion. Birth may take different forms, from constitutional convention to treaty.  Arguably each new creature inherits a genetic and legal code altogether different from that of their parents.  The constitutive act may explicitly or implicitly extinguish the separate existence of the constituent units, but, in any event, it will subordinate the constituent units to the new creation.  Thus, it is sometimes thought that whereas the subjects of a treaty (or a treaty-based international organization) are the states composing it, the subjects of, say, a federal constitutional order are not only its constituent states, but also its common citizenry.  This difference is thought to create a different level of legitimacy for the constitutional order, one where its legitimacy does not come only from the consent of sovereign states but from the broader and more direct consent of the citizens of those constituent units.  Typically, the international organization is governed by international law and the constitutional order by its own municipal law.
	There is no doubt that the European legal order started its life as an international organization in the traditional sense, even if it had some unique features from its inception.  This original internationalism was evident in, for example, the attitude of the institutions of the Communities themselves, including the vaunted ECJ, as well as in the attitude of the Member States receiving expression in, for example, early instances of Treaty amendment.  We entirely share, then, Schilling’s critique of those who hold that the Community legal order was born as a constitutional order.  It should be stated that few would ascribe original constitutionalism to the Community legal order.
	Nevertheless, one of the great perceived truisms, or myths, of the European Union legal order is its alleged rupture with, or mutation from, public international law and its transformation into a constitutional legal order.  This mutation takes place, allegedly, from 1963 onwards and is reflected in landmark cases of the ECJ -- in dialogue with national courts.  The Court talks first of a “New Legal Order of International Law” and then of a “New Legal Order” simpliciter.  The “newness” of the legal order is characterized as “constitutional” and the process as “constitutionalization.”  The subjects of the new order are said to be not only states, but also individuals.  Most commentators focus on the legal doctrines of supremacy of European law, the direct effect of European law, implied powers and preemption, and on the evolution of the protection of fundamental human rights as hallmarks of this “constitutionalization.” 
	Whether or not, from the perspective of legal theory, these specific legal doctrines constitute real hallmarks of a constitutional order, as distinct from a classical international law order, can be -- and has been -- open to debate.  Assuming the distinction between an international and a constitutional order makes any sense at all -- and this too can be doubted! -- we would prefer to focus on the following features which distinguish the European legal order from public international law:  the different hermeneutics of the European order, its system of compliance which renders European law in effect a transnational form of “higher law” supported by enforceable judicial review, as well as the removal of traditional forms of State Responsibility from the system.  We shall deal with these issues extensively in a separate article.
	However flawed the “constitutionalization” thesis may be from the perspective of legal theory, it has enjoyed huge success in the discourse of European law, and this from all actors concerned. The evidence is everywhere, both sublime and ridiculous -- let the reader be the judge of which is which.
	For its part, the ECJ did not hesitate to abandon the New Legal Order vocabulary in favor of an explicit constitutional rhetoric.   And whatever European law is called elsewhere, it has been treated frequently and consistently by national courts differently from most other treaty law and from the decisions of most other international organizations.  Not surprisingly, Community law is often practiced, taught, and studied by different sets of professionals.  In what many consider the preeminent English-language international legal journal,  The American Journal of International Law, you will hardly find articles dealing with European law, ever since Eric Stein published his celebrated article consecrating the European legal order in federal constitutional terms, for the simple reason that the journal does not consider it international law!  Even that cheeky upstart rival,  The European Journal of International Law,  treats the European Union as a polity in whose internal law it has little interest, for, again, it is not considered international law.  By contrast, this last journal takes trouble to publish the European Union’s “State Practice” in international fora for the benefit of its readers, in the way international law journals occasionally publish surveys of the state practice of the nation from which they publish.  Furthermore, at most institutions of higher learning, knowledge of international law is not a requisite for the study of European Law.  It has, in our view, become increasingly artificial to describe the legal structures and processes of the Community with the vocabulary of international law.
	Schilling himself is not impressed by the “constitutionalization” thesis.  Even if the Community, like a precious metal, has some of the characteristics of a constitutional legal order, it lacks the most fundamental property:  legitimation through a popular constituent power which in this case can only be the European people(s).  From a purist, Kelsenian, perspective, Schilling argues, European constitutionalism is ersatz gold.  Schilling thus reverts back to the origins of the Community and places his bet on international law.
	But what of the realist perspective?  In light of the overwhelming practice of the last three or four decades, if the Community order is treated as constitutional who cares what it “really” is? Schilling does not shy away from the realist perspective, which he calls the Hartian perspective.  His critique is more refined.  He claims that if one takes the realist approach one buys a European constitutional construct by compromising the legitimacy of the European public sphere.
	We cannot accept the purist approach.  We do not think that a reversion to public international law is any less artificial than the constitutional characterization.  The Community lacks, in our view, some of the fundamental properties of internationalism.  We are, however, very sympathetic to Schilling’s assessment of the realist perspective. We too have characterized this system as a constitutional order without constitutionalism.  We think that the legitimacy gap is for real.  The Community has adopted constitutional practices without any underlying legitimizing constitutionalism.  Yet, attempts such as those by the German Constitutional Court and by Schilling to try to push the toothpaste back in the tube by asserting that the Community is nothing more than an International Organization are self-serving (to the Court) and unhelpful in addressing the real problem of legitimacy.  The legitimacy problem that Schilling points out will not go away if we change the theoretical foundation of the legal order from a constitutional one to an international one.  Be this as it may, the implication of the internationalist premise on the “Decisive Question” is of greater interest.

III.  Judicial Kompetenz-Kompetenz

	How then does Schilling deal with the “Decisive Question” of the ultimate power to invalidate ultra vires Community law?  And how does he reach the conclusion that an “... international law interpretation of the European Treaties thus leads to the conclusion that the ECJ is not the ultimate umpire of the system ...” from which he believes that it follows that “... the Member States, individually, must have the final word on questions concerning the scope of the competences they have delegated to the Community”?  It is worth following his reasoning with some care.
	His first argument, referring to Kelsen’s 1952 treatise, is to claim, somewhat surprisingly, that “[g]eneral international law does not provide any guidance on this question because it does not know of international institutions.”  He then relies on a 1953 essay by Leo Gross to support his thesis that “[t]he accepted method for the interpretation of international treaties, in the absence of treaty institutions, is autointerpretation.”  We doubt whether either of these statements is an accurate reflection of their authors’ intentions or, in any event, of international law in the 1990s.  When we offer our alternative construct, we shall return to these points.
	First, we think that Schilling mischaracterizes the issue of autointerpretation.  Even in treaties without centralized institutions, which is not the case of the European Treaties, autointerpretation, by each state individually, is mostly accepted as a practical inevitability with little, if any, normative value.  The very article by Leo Gross on which  Schilling seems to rely is most eloquent on this issue.  Gross explicitly avoids giving any normative spin to autointerpretation and clearly labels it as a de facto stand-off when he denies it any binding force.  It is useful to quote Gross more extensively.

	This interpretation [of the individual states], however, is not a “decision” and is neither final nor binding upon the other parties ... [We] may never know ... which autointerpretation was correct. A controversy, in other words, may remain unsettled forever or for a long time.
	It can be shown, I believe, that states have the right of autointerpretation but not the right to decide questions of international law, that is, to make binding decisions for others.
	In a dispute regarding the interpretation of a bilateral treaty, the competent authority is the composite organ formed by the two contracting parties, or a tribunal instituted by the parties with the power to settle the dispute. To attribute to one party alone the capacity of an organ, that is, the right to decide the meaning of a treaty, would amount to conferring on it the right to create a norm binding on the other state, that is, juridically speaking, subordinate the other state to the jurisdiction of the former. If no other principle of international law then certainly the principle of equality militates against such an attribution. Obviously, autointerpretation has no binding character. In autodecision, such a character is implied, but without any justification in general international law.
	The same consideration applies in multilateral treaties. Each contracting party has a right of autointerpretation, but not of autodecision. The right of authentic interpretation is vested in the composite organ formed by all the contracting parties. Unless the treaty provides for an alternative procedure, an authoritative interpretation can result from negotiations leading to an agreement, or from arbitration or adjudication.
	It is part of the principle of pacta sunt servanda that the right of authentic interpretation belongs to the composite organ which created the treaty and not to any of the states members of that organ.
	Arbitration and adjudication appear to be among the classic methods for seeking and obtaining an authoritative interpretation on questions arising from the autonomous application and interpretation of international law.
	Gross warns explicitly against Schilling’s mistake:

	Autointerpretation is easily presented, or rather misrepresented, as autodecision for want of a compulsory procedure leading to a heteronomous and binding decision. But appearances are misleading ... 
	Presupposing the absence of any mechanism of dispute resolution, we consider autointerpretation as a factual inevitability in a realm of little legal sophistication, and equally little shared goals and coordination.  It is not by accident that Gross discusses the issue of autointerpretation in reference to Kelsen’s theory that states act as organs of the international community, which is closely related to the problem of bellum justum.  Neither is it by accident that the most notable and recent case on the subject touched upon the unilateral re-interpretation of a cold war arms control treaty between the US and the Soviet Union.  Yet even to say that autointerpretation under these conditions would be an “accepted method” proves too much.  Both jurisprudential and functional arguments are powerful enough to cast more than a shadow of doubt on a normative claim to autointerpretation.
	These difficulties with autointerpretation, both jurisprudential and pragmatic, have increasingly induced States to create a variety of mechanisms to settle disputes -- ranging from voluntary arbitration to the creation of international tribunals and a binding commitment to judicial dispute resolution.  The extensive experience with international institutions in the last four decades, while it has become part of general international law, has also revealed the intricate problem of quis judicabit -- who is competent to decide upon measures adopted by international organizations?  While we expect that the Messiah will have to arrive before total consensus among international lawyers can be reached on any issue, state practice confirms the overwhelming view that when a treaty sets up a procedure for binding dispute resolution, particularly judicial organs, autointerpretation is legally squelched.  Tribunals do have jurisdiction to determine their own competence by interpreting their constitutive instruments.  Likewise, under general international law, the competence of a tribunal to determine the illegality of the actions of an international organization presumptively includes all grounds of illegality, including, we would submit, this international organization’s lack of competence to act.
	When the stakes are sufficiently high and states do not want to risk the outcome of a binding resolution, these states can use well-established and widely-practiced techniques to preserve their position.  Instead of binding judicial resolution, states can, for instance, empower panels or committees to issue recommendations and help in conciliation.  But as a general proposition, practically self-evident, it would empty binding judicial dispute resolution of its meaning if States subject to such procedures, were then, in law, free to resort to “autointerpretation” and disregard the decision of the international tribunal.
	We do not wish to minimize the “hard case” scenario.  Arguably, a state is not obligated by an otherwise-binding resolution if this resolution was adopted ultra vires.  But why limit this result to resolutions adopted ultra vires?  Arguably, a state is not obligated by an otherwise-binding resolution if it was illegal for whatever reason, e.g. a procedural failure or a conflict with jus cogens.  The nature of a mechanism providing for binding judicial resolution is that a state has to live with the risk of an adverse decision.
	Under general international law, the state does have certain options.  It can, for example, seek to convince all parties to the treaty to adopt its position.  If successful, as masters of the treaty, the member states can jointly modify the treaty provision or the measure in question to remove the alleged illegality.  A state can, if allowed, withdraw from the organization.
	Of course, it can also decide to follow its own understanding of the law and disregard the tribunal, as states have sometimes done, but by doing so it would be violating international law and incurring state responsibility.  While such a violation is a pragmatic option, in that states can, in fact, take this course of action, this option should not be cloaked with the mantle of legality.
	Therefore, general international law does give us some guidance, and the guidance it gives us runs counter to Schilling’s argument.  Be that as it may, Schilling does not stake his claim on general international law, but on an international law interpretation of the EC Treaties.  We must therefore turn to these.  Do the European Treaties create some exception to the thrust of general international law?
	Faithful to his internationalist approach,  Schilling brushes aside the rather particularized hermeneutics, developed and applied for years within the European legal order, and exhorts us to return to article 31(1) of the Vienna Convention on the Law of Treaties.  Interpretation is to follow “... the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
	The relevant provisions, according to Schilling, are EC art. 164 and EC arts. 169 - 183.  In particular, he focuses on EC art. 171, which states that “[i]f the Court of Justice finds that a Member State has failed to fulfill an obligation under this Treaty, [it] ... shall be required to take the necessary measures to comply with the judgment of the Court of Justice.”  Schilling finds the ordinary meaning of this provision to indicate that the Court “... is the ultimate umpire of the European system.”  We concur, reading the plain language of the article -- which does not restrict the duty of obedience ratione materiae.  If a Member State were to decide that it did not have to follow a measure it viewed as ultra vires but the ECJ thought otherwise, article 171 would require that the Member State obey the ECJ.  But Schilling tries to overturn his own understanding of the ordinary meaning of the words by demonstrating that such a plain meaning would be inconsistent with the context of the provision and the object and purpose of the European Treaties.  
	Before we turn to his analysis of context, object and purpose, we must raise a more fundamental question:  should Schilling have focused solely (or even principally) on EC Treaty art. 171 in his international law interpretation of the European Treaties on the issue of judicial Kompetenz-Kompetenz?  We think that art. 173 and 177 are also worthy of special mention.
	Taking an internationalist, voluntarist, positivist approach, we recall that the High Contracting Parties to the European Treaties set up a court, the ECJ, to settle disputes arising under the Treaties.  In their wisdom, they granted that Court wide jurisdiction, including jurisdiction to review the legality and validity of Community measures.  They even set out the criteria which the Court was to employ when engaging in such review.  They could have restricted the competence of the Court to review, for example, infringements of procedural requirements.  They also could have given wide grounds of review in some fields while excluding others entirely.  Schilling claims that a correct internationalist interpretation of the Treaties gives the individual supreme courts of the Member States, acting separately, the final say on the competences of the EC.  The Member States could have spelled that out, but they did not.  In fact, they appear to have spelled out the opposite.  In article 173, the grounds for review are listed as “... lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.”  
	The first ground for declaring the illegality of an act of a Community institution is lack of competence.  This lack of competence might be internal, i.e., if the competence belongs to another institution, or external, i.e.,  the Community, as such, lacks competence.
	But why read art. 173 as making the European Court the “ultimate” umpire?  This is what Schilling would have us believe is a correct international law interpretation of this provision:  the High Contracting Parties set up the ECJ and gave it explicit jurisdiction to adjudicate challenges to Community measures by, among others, Member States on the grounds of lack of competence.  That is, a Member State in dispute with a Community institution or with other Member States regarding the observance of Community law, if it believes that it may disregard a Community measure because it was taken ultra vires, is given a specific judicial remedy before the ECJ.  But according to Schilling, the High Contracting Parties intended with this provision that the state challenging the legality of a community measure, if it lost in front of the ECJ, could nonetheless disregard the Community measure in question by using its right to “autointerpretation.”  “Heads I Win, Tails You Lose,” is what we used to call that form of adjudication in kindergarten.  This, we think, flies against the ordinary meaning and the entire judicial review context of the provision.
	It also flies against the purposes of the treaties which include, according to art. 2, harmonious and balanced development, social cohesion, and solidarity among Member States.  Consider, as just one example, the pragmatic nightmare that would ensue in a treaty as long, complex, and, by its own terms, open-textured as the EC Treaties if such an interpretation were adopted.  State A, in the face of an unfavorable judicial decision, unilaterally abrogates Treaty provision x on the grounds that it is, in its eyes, ultra vires.  The international law principle of reciprocity would mean that that particular obligation would cease to be operative between A and all the other Parties B - Z.  So now there would be two co-existing regimes in relation to provision x;  x is applied as among Parties B - Z, but inapplicable in the relationship of B - Z with A.  Now imagine that State B abrogates, on the same grounds, Treaty provision y, and that State C does likewise with Treaty provision z.  Some harmonious relations; Garry Kasparov would, we think, have difficulties in sorting out the permutations.
	The Vienna Convention, in article 32(b) suggests that when the ordinary meaning leads to a result manifestly absurd or unreasonable, we may resort to subsidiary means of interpretation, including the travaux préparatoires.  The travaux préparatoires of the EC Treaties have not been published and are not pleaded before the Court.  Fortunately, we do not need them.  In our view, this absurdity does not result from the ordinary meaning of the treaty, but rather from the extraordinary meaning that Schilling’s construct would put on this provision.
	Is it not more reasonable to imagine that, given the wide economic and social catch of the European Treaties and their unprecedented institutional scope, the delicate compromises which the various substantive obligations must have entailed, and the temptation by states to find excuses to escape the results of hard bargains, the High Contracting Parties established such elaborate provisions for centralized judicial review in order to, among other reasons, escape the pragmatic nightmare just mentioned, and not in order to place their multilateral bargains hostage in the hands of oft-partisan national courts?
	In addition, the European Treaties, as Schilling himself points out, have been amended frequently and “re-ratified” on each instance of enlargement.  For Schilling, this practice is a reminder of the international law character of the Community.  So be it.  But if the High Contracting Parties disagreed with the Court’s understanding of its role and powers, wouldn’t they have used these repeated occasions to “set the record straight” on what they had in mind?  After all, they used these occasions to set the record straight on other issues.  Instead, not only did the Member States fail to introduce any clarification in the sense argued by Schilling, they also amended the treaty in the opposite way.  Rather than mentioning the right to disobey the ECJ through autointerpretation of measures taken ultra vires, the Member States modified art. 171 to allow for imposing penalties against Member States who disobey the ECJ.   And note that we are talking about the very practice which, to Schilling, confirms the international legal character of the Treaties.
	Consider next the most celebrated legal provision in the Treaty, EC Treaty art. 177.  The High Contracting Parties envisaged a role for national courts in the interpretation and application of Community law and in determining questions of its validity -- not excluding, one may assume, a challenge to a Community measure alleged to be ultra vires.  But as hardly needs reminding, when it comes to the highest national courts, against whose decisions there is no judicial remedy (which on any reading of art. 177 would include the highest courts in the land, those courts to which Schilling would give the final say on the jurisdictional limits of the Community), Community law obligates them to make a preliminary reference to the ECJ.  That is the text.  Its ordinary meaning is quite clear.  Moreover, the purpose of this provision is the same as the purpose of the comparable provisions in domestic constitutional systems such as Germany and Italy, namely to ensure uniform interpretation of treaty provisions throughout the jurisdiction.
	Schilling, who champions the rule of law, insists that art. 177 has to be “scrupulously respected.”  He would, however, have us believe, in accordance with his understanding of the ordinary meaning of this provision and other international legal rules of construction, that art. 177 and the duty to refer are “scrupulously respected” when the highest national Court makes a reference to the ECJ but, once this was done, presumably after saying a polite thank you, “... the Member States can use autointerpretation,” meaning the national court can go on to do what it wished to do anyway.  Again, “Heads I Win” (if the Preliminary Ruling finds in my favor), “Tails You Lose” (if it does not, but then I get to invoke autointerpretation).  This, following Schilling, is to be considered a scrupulous observance of art. 177 according to international law?  And this is also to be considered the basis from which the German Federal Constitutional Court is to give the ECJ lessons in observing the rule of law?
	 Schilling’s interpretation hardly squares with the ordinary meaning of the words of EC Treaty art. 177.  It contradicts the object and purpose of art. 177 without the need to invoke any of the rhetoric, presumptions, or hermeneutics of European constitutionalism.  It is, perhaps, not surprising that Schilling decides to stake his claim on EC Treaty art. 171 and to somehow leave arts. 173 and 177 in the shadows.
	We now come to one of the most puzzling passages in the entire Schilling argument, the one which uses the object and purpose of the European Treaties as a way to negate the ordinary meaning of EC Treaty art. 171.  It is worth citing in extensu.

	The purposes of the EC Treaty, as stated in article 2, relate to the activities of an economic community and, therefore, are arguably restricted to these activities. It follows that the European Treaties should not be interpreted as granting the Community unrestricted powers, in particular Kompetenz-Kompetenz. But such a conclusion is at odds with a Kompetenz-Kompetenz of the ECJ over questions of the respective competences of the Community and the Member States.
	In part, we believe the problem comes from the language, in particular from a possible conflation of the term Kompetenz-Kompetenz, which means two different things when applied to the Community and the Court.  In part, the statement is simply misconceived.
	Let us take the argument step by step.
	First, it should be noted that the object and purpose of the European Treaties, even of the rather narrow Treaty of Paris establishing the European Coal and Steel Community, are by no means economic only.  While preambles do not create positive legal obligations, they can help in understanding the purpose of a treaty, as expressly provided for in art. 31 of the Vienna Convention on the Law of Treaties.  Entire chunks of the politically-charged and visionary Schuman Declaration are written into the Preamble of the Treaty of Paris.  And the Treaty of Rome commences with that highly economic objective of laying the foundations “... of an ever closer union among the peoples of Europe.”  Do these texts have no hermeneutic significance in international law?  We have always believed that the genius of the Treaties was to have political ends achieved by economic means.
	Even in art. 2 EEC Treaty, which Schilling privileges in his view as to where one should look to determine the object and purpose of the EC Treaties, he glosses over the explicit task of creating closer relations among the States of the Community which takes place alongside the more economic tasks.  Maastricht rejects any claim that the Treaties are aiming, “basically” or otherwise, purely at economic goals.  As one example undermining the claim of a “basic” economic community, it is sufficient to note that the Maastricht Treaty introduces a European citizenship.  The alleged “basic” economic nature of the EC Treaties is a tired old horse that should be let out to graze.
	Nonetheless, let us assume, quod non, that the objects and purposes of the European Treaties were basically economic.  Independently of that assumption, we can agree that the EC Treaty should not be interpreted in such a way as to give the Community organs unrestricted powers, in particular Kompetenz-Kompetenz.  This would be true regardless of whether the purposes of the Treaties were broad or narrow.  For let us be clear:  n this context, Kompetenz-Kompetenz takes its meaning from its traditional usage in German Constitutional law.  This is the power of the Community to determine (or enlarge) its own competences.  We agree that the competences of the Community, however broadly or narrowly defined,  should remain attributed -- i.e., limited by the explicit or implicit grants in the Treaty, as interpreted by the rules of international law. 
	The crunch comes at this point in the Schilling  text.  Even if all the above is true, why does this imply that the ECJ, charged with adjudicating disputes arising from the Treaties and seeing that in the interpretation and application of the Treaty “... the law is observed,” cannot also decide disputes over the jurisdictional reach of the Community between the various actors?  And why can it not be the ultimate umpire of such disputes?  Why does it follow that if one of the purposes of the Treaties was to create an international organization with limited powers, the Community, and with no legislative Kompetenz-Kompetenz (i.e. without the power to extend its own jurisdiction), the Treaties cannot establish a court, the ECJ, with judicial Kompetenz-Kompetenz (i.e. the power to be the ultimate arbiter of disputes concerning the extent of those limited competences), giving one decisive answer, valid for everyone, which would ensure that the same measure of Community law is not considered legal in one jurisdiction and illegal in another?
	The assumption that a Community without legislative Kompetenz-Kompetenz cannot contain a court with judicial Kompetenz-Kompetenz is at the core of Schilling’s argument.  It is not self-evident.  In fact, we think it is false.  Because Schilling assumes it without proof, Schilling’s reasoning is, in our view, a classical non-sequitur, presuming that which he needs to prove and resting on assertion rather than reason.
	Imagine a far-narrower treaty than the European Treaties, for instance, a treaty setting up among several states a transnational regime with law-making institutions empowered to regulate all matters affecting, say, migratory birds.  Inevitably, by the very nature of language and law, there will be a “twilight zone” where the precise jurisdictional limit of which matters affect migratory birds will be disputed.  Imagine further that the High Contracting Parties of this hypothetical organization set up a Court with judicial review provisions identical to those of the ECJ.  Schilling himself admits that the ordinary meaning of the EC Treaty provisions clearly points to that Court being the ultimate umpire on the jurisdictional limit of the organization.  Why does the fact that the purpose of this hypothetical organization is rather narrowly defined necessarily lead one to the conclusion that the ordinary meaning is to be overturned?  Given that any jurisdictional limit is going to have a gray zone, why not, in the interest of avoiding otherwise insoluble disputes, empower a centralized Court to be the ultimate umpire?  This question is even more legitimate in the light of the fact that the law-making institutions envisioned by the Treaty legislate by majority voting, and that the Treaty has notoriously open-textured provisions such as art. 100 and its progeny, and art. 235.
	Once again, the specter of Alice hovers.  If at all, it is just the other way around:  the narrower the purposes and jurisdiction, the more willing the parties will be to entrust adjudication to judicial organs because the stakes, even if the Court were to err, would not be so high.  By contrast, if the organization was given broader powers, states may hesitate to entrust to a transnational court such power.  Proof of this may be found in the EU Treaties.  The Maastricht Treaty expanded the reach of the Union in a few notable areas.  The Member States were quick to seek to disenfranchise the ECJ when engaging in foreign policy, security, and their immigration policies. Likewise, in drafting the UN Charter with its extremely broad objectives and jurisdiction, the Member States were careful not to enfranchise the International Court of Justice.
	Schilling raises one last argument to “buttress” the presumptive will of the Member States in entering into the European Treaties.  He cites Advocate General Warner in the ICRA case:

	No Member State can  ...  be held to have included, in [the partial] transfer [of sovereignty to the Community] power for the Community to legislate in infringement of rights protected by its own constitution.
	Warner was writing in the context of European Community protection of fundamental human rights.  He also makes clear the consequences of his statement:

	 ...  a fundamental right recognized and protected by the Constitution of any Member State must be recognized and protected also in Community law. 
	If not, it would indeed mean that a Member State would have transferred to the Community the power to violate its constitution. 
	A seductive proposition but, alas, not good law.  With all respect to former A.G. Warner, his construct has been flatly rejected by the ECJ, and for good reasons.  In Hauer, decided after ICRA, the ECJ forcefully states:

	[T]he question of a possible infringement of fundamental rights by a measure of the Community institutions can only be judged in the light of Community law itself.  The introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular Member State would, by damaging the substantive unity and efficacy of Community law, lead inevitably to the destruction of the unity of the Common Market and the jeopardizing of the cohesion of the Community.
	Schilling may argue that he finds the Advocate General more persuasive than the Court.  Advocate Generals often are!  But not here.  Grogan, the celebrated abortion rights case, provides a classic illustration of why the approach of Warner was rejected and why it cannot, both as a matter of policy and logic, be accepted in most instances.  What if the constitution in one member state guaranteed the near absolute right of the fetus to life, yet in another Member State, the “opposing” right of a woman to autonomy over her body was constitutionally guaranteed, including the right to abort a fetus in certain circumstances?  Which of the two rights would Warner have the ECJ choose to recognize as a Community right?  In the case of abortion, how can the ECJ recognize the near absolute right of the unborn in the Irish constitution and at the same time uphold a woman’s right to self-determination?  Even for a Court guilty of constitutionalism run amok, this would be one twist too far. 
	Two further things ought to be mentioned in this context.  First, it seems that Schilling is moving beyond the limited proposition that the final say on issues of competences and ultra vires rests with the highest jurisdictions of the Member States, and is expanding the proposition to any rule or principle of national constitutional law.  That conclusion would logically follow from his reasoning.  If the proposition is that the Member States could not delegate to the Community matters reserved to them by their respective constitutions, surely this could not be limited to issues of jurisdiction but would extend to all material conflicts with a national constitution.  The practical nightmare would be considerable.
	But most surprising, and most telling, is that Schilling endorses the view of Warner from an international law point of view.  The general rule of international law does not allow, except in the narrowest of circumstances which do not prevail here, for a state to use its own domestic law, including its own domestic constitutional law, as an excuse for non-performance of a treaty.  That is part of the “abc...” of international law and is reflected in the same Vienna Convention on which Schilling relies.  The authoritative treatise, Oppenheim’s International Law is clear:

	It is firmly established that a state when charged with a breach of its international obligations cannot in international law validly plead as a defense that it was unable to fulfill them because its internal law ... contained rules in conflict with international law; this applies equally to a state’s assertion of its inability to secure the necessary changes in its law by virtue of some legal or constitutional requirement ...  

In the PCIJ Decision on Treatment of Polish Nationals in Danzig, the World Court held explicitly that a state cannot adduce its own constitution in order to evade obligations incumbent upon it under international law.
	International law, thus, turns out to be a broken reed for the propositions advanced by  Schilling.  Indeed, after all his advocacy of an international law approach, at the end of the day, it is national constitutional authority which seems to animate him.

IV.  Redefining the Decisive Question

	This analysis is telling because, we think, it leads us to identify what we believe is the real concern of Schilling and the German Federal Constitutional Court to whose support he runs.  The real concern is not with the integrity of the Treaty under international law, nor even with the Rule of Law.  On the one hand, there seems to be an unhappiness with the erosion of state sovereignty in a classical sense in a materially and legally inter-dependent world.  It is really state rights which concern Schilling, albeit cloaked in a would-be mantle of international law.
	But there probably is yet another concern for which we have greater sympathy.  Imagine the unlikely scenario that Schilling were persuaded by our arguments.  Would he really be happy to see the European Court remain in its pivotal position as ultimate umpire on questions of competences?  We doubt it.  His other concern, we think, is not with the idea of a centralized court that states may create to police their transnational legal undertakings (which from an international law perspective is legitimate and unexceptional), but with the performance of this particular Court, especially on the issue of competences. 
	The decisive question that truly underlies Schilling’s engagement with international law is quite different to the one he poses.  The question is not, do the European Treaties make the European Court the final umpire over Community competences?, but rather, can we trust and have confidence in the ECJ to perform the task of ultimate umpire of the jurisdictional limits?  The issue, then, is not one of formal definition of task, but of trust in the performance.  
	The history of the Community jurisdictional powers explains Schilling’s concerns.  He is not alone in developing that sensitivity.  During the debate accompanying the Maastricht Treaty, there erupted the dormant question of Community “competences and powers.”  This question and the accompanying debate found their code in, for example, the deliciously vague concept of “subsidiarity.”  This question has been inevitably connected to the continued preoccupation with governance structures and processes, with the balance between Community and Member States, and with the questions of democracy and legitimacy of the Community to which the Maastricht debate gave a new and welcome charge.
	What accounts for this eruption?
	First, a bit of history.  The student of comparative federalism discovers a constant feature in practically all federal experiences:  a tendency towards concentrations of legislative and executive powers in the center or general power at the expense of constituent units.  This concentration apparently occurs independently of the mechanism allocating jurisdiction / competences / powers between center and “periphery.”  Differences, where they occur, depend more on the ethos and political culture of polities than on legal and constitutional devices.  The Community has both shared and differed from this general experience.
	It has shared it in that the Community, especially in the 1970s, had seen a weakening of any workable and enforceable mechanism for allocation of jurisdiction/competences/powers between Community and its Member States.
	How has this occurred? It has occurred by a combination of two factors. 
	a.   Profligate legislative practices especially in, for example, the usage of art. 235.
	b.   A bifurcated jurisprudence of the Court which on the one hand extensively interpreted the reach of the jurisdiction/competences/powers granted the Community and on the other hand had taken a self-limiting approach towards the expansion of Community jurisdiction/competence/powers when exercised by the political organs.
	To make the above statement is not tantamount to criticizing the Community, its political organs and the ECJ.  The question is one of values.  It is possible to argue that this process was beneficial overall to the evolution and well-being of the Community as well as beneficial to the Member States, its citizens and residents.  But this process was also a ticking constitutional time bomb which one day could threaten the evolution and stability of the Community.  Sooner or later, “supreme” courts in the member states would realize that the “socio-legal contract” announced by the ECJ in its major constitutionalizing decisions -- namely, that “the Community constitutes a new legal order ... for the benefit of which the States have limited their sovereign rights, albeit within limited fields” -- had been shattered.  Although these “supreme” courts had accepted the principles of the new legal order, supremacy and direct effect, the fields seemed no longer limited.  In the absence of Community legal checks, they would realize, it would fall upon them to draw the jurisdictional lines of the Community and its Member States.
	Interestingly enough, the Community experience differs from the experience of other federal polities, in that despite the massive legislative expansion of Community jurisdiction / competences / powers, there had not been any political challenge of this issue from the Member States.
	How so?  The answer is simple and obvious, and it resides in the decision-making process as it stood before the Single European Act (SEA).  Unlike the state governments of most federal states, the governments of the Member States, jointly and severally, could control the legislative expansion of Community jurisdiction / competences / powers.  Nothing that was done could be done without the assent of all States.  This diffused any sense of threat and crisis on the part of governments.  Indeed, if we want to seek “offenders” who have disrespected the principle of limited competence, the governments of the Member States, in the form of the Council of Ministers, conniving with the Commission and Parliament, would be the main ones.  How convenient to be able to do in Brussels what would often be politically more difficult back home, and then exquisitely blame the Community!  The ECJ’s role has been historically not one of activism, but one of, at most, active passivism.  Nonetheless, it did not build up a repository of credibility as a body which effectively patrols the jurisdictional boundaries between the Community and Member States.
	This era passed with the shift to majority voting after the entry into force of the SEA and the seeds -- indeed, the buds --  of crisis became visible.  It became a matter of time before one of the national courts would defy the ECJ on this issue.  Member states would become aware that in a process that gives them neither de jure nor de facto veto power, the question of jurisdictional lines has become crucial.  The Maastricht Decision of the German Federal Constitutional Court fulfilled this prediction, albeit later than anticipated.
	Of course, the German decision is an egregious violation of the Treaty -- ironically, especially if understood in classical international legal terms.  But this view is grounded in the classical, hierarchical, centrist view of the European legal order.  How should one evaluate this development given the questions concerning the normative authority of European constitutionalism and a more horizontal, conversation-based view of that very same constitutionalism?
	Somewhat inappropriately, given the conversation metaphor, we want to use some of the dynamics of the Cold War as a device for evaluating the judicial Kompetenz-Kompetenz aspect of the Maastricht Decision of the German Federal Constitutional Court.
	According to this analogy, the German decision is not an official declaration of war, but the commencement of a cold war with its paradoxical guarantee of co-existence following the infamous MAD (Mutual Assured Destruction) logic.  For the German Court actually to declare a Community norm unconstitutional, rather than simply threaten to do so, would be an extremely hazardous move so as to make its usage unlikely.  The use of tactical nuclear weapons was always considered to carry the risk of creating a nuclear domino effect. If other Member State courts followed the German lead, or if other Member State legislatures or governments were to suspend implementation of the norm on some reciprocity rationale, a real constitutional crisis would arise in the Community -- the legal equivalent of the Empty Chair political stand-off in the 1960s.  It would be hard for the German government to remedy the situation, especially if the German Court decision enjoyed general public popularity.  Would the German Federal Constitutional Court be willing to face the responsibility of dealing such a blow to European integration, rather than just threatening to do so?
	Maybe not, but the logic of the Cold War is that each side has to assume the worst and to arm as if the other side would actually deal the first blow.  The ECJ would then have to watch over its shoulder the whole time, trying to anticipate any potential move by the German Federal Constitutional Court.
	If we now abandon the belligerent metaphor, it could be argued that this situation is not per se unhealthy.  The German move is an insistence on a more polycentered view of constitutional adjudication and will eventually force a more even conversation between the European Court and its national constitutional counterparts.  We would suggest that, in some ways, the German move of the 1990s in relation to competences resembles their prior move in relation to human rights.  It was only that move which forced the European Court to take human rights seriously.
	The current move could also force the Court to take competences seriously.
	This view is not without its functional problems.

	a.   There is no “non proliferation treaty” in the Community structure. MAD works well, perhaps, in a situation of two superpowers. But there must be a real fear that other Member State Courts will follow the German lead in rejecting the exclusive Kompetenz-Kompetenz of the ECJ. The more courts adopt the weapon, the greater the chances that it will be used. Once that happens, it will become difficult to push the paste back into the tube.
	b.   Courts are not the principal Community players. But this square-off will have negative effects on the decision making process of the Community. The German Government and Governments whose Courts will follow the German lead, will surely be tempted to play that card in negotiation. (“We really cannot compromise on this point, since our Court will strike it down ...”)
	Here, too, we find an interesting  paradox.  The consistent position of the ECJ, as part of its constitutional architecture, has been that it alone has judicial Kompetenz-Kompetenz because the jurisdictional limits of the Community are a matter of interpretation of the Treaty.  The German Federal Constitutional Court, as part of its reassertion of national sovereignty and insistence of legitimization of the European construct through states’ instrumentalities and the logic of public international law, has defied the ECJ.  As we argued throughout this article, the internationalist logic claimed by the German Court negates its own conclusions.  Surely, the reach of an international treaty is a matter of international law and depends on the proper interpretation of that treaty.  Therefore, from the internationalist perspective, the ECJ must be the final umpire of that system. 
	If, however, the European polity constitutes a constitutional order as claimed by the European Court of Justice, then this issue is far more nuanced.  There has been no constitutional convention in Europe. European constitutionalism must depend on a common-law type rationale, one which draws on and integrates the national constitutional orders.  The constitutional discourse in Europe must be conceived as a conversation of many actors in a constitutional interpretative community, rather than a hierarchical structure with the ECJ at the top.  It is this constitutional perspective that, paradoxically, gives credibility to the claim of the German Court.  A feature of neo-constitutionalism in this case would be that the jurisdictional line (or lines) should be a matter of constitutional conversation, not a constitutional diktat. 
	And yet, the solution offered by the German Federal Constitutional Court and endorsed by Schilling is no conversation either.  Although the German Court mentions that these decisions have to be taken in cooperation with the ECJ, it reserves the last word to itself.  A European diktat is simply replaced by a national one.  And the national diktat is far more destructive to the Community, if one contemplates the possibility of fifteen different interpretations.
	How, then, can one square this circle?
	One possible solution is institutional and we would like to outline only its essential structure.  We have proposed the creation of a Constitutional Council for the Community, modeled in some ways after its French namesake.  The Constitutional Council would have jurisdiction only over issues of competences (including subsidiarity) and would decide cases submitted to it after a law was adopted but before coming into force.  It could be seized by any Community institution, by any Member State or by the European Parliament acting on a majority of its Members.  Its president would be the President of the ECJ, and its members would be sitting members of the constitutional courts or their equivalents in the Member States.  Within the Constitutional Council, no single Member State would have a veto power.  The composition would also underscore that the question of competences is fundamentally also one of national constitutional norms, but still subject to a Union solution by a Union institution.  
	We will not elaborate in this Article some of the technical aspects of the proposal.  The principal merit of this proposal is that it addresses the concern over fundamental jurisdictional boundaries without compromising the constitutional integrity of the Community, as did the Maastricht Decision of the German Federal Constitutional Court.  Since, from a material point of view, the question of boundaries has an built-in indeterminacy, the critical issue is not what the boundaries are, but who gets to decide.  On the one hand, the composition of the proposed Constitutional Council removes the issue from the purely political arena; on the other hand, it creates a body which would, we expect, enjoy a far greater measure of public confidence than the ECJ itself.

Rejoinder: The Autonomy of the Community Legal Order
In Particular: The Kompetenz-Kompetenz of the ECJ
Theodor Schilling* 

I. To receive a prompt and incisive response is the second best thing that can happen to an article (and its author). The best thing is to be given an opportunity to submit a rejoinder. The response, in the nature of things, tries to expose the weak points in the original article, or rather those points perceived to be weak by the respondent, viz. the points on which the article arguably needs some touching up. Thus, in a dialectic turn, the response, by trying to refute the argumentation in the original article, makes it possible to strengthen it.
In this rejoinder to the response J.H.H. Weiler and Ulrich R. Haltern gave to my original article, in particular to the part of it dealing with international law, I do not set out to defend the latter in its entirety; rather, I shall defend only the core of my international law argument i.e. the close connection between legislative Kompetenz-Kompetenz of the Community and judicial Kompetenz-Kompetenz of its Court. For the rest, I shall rely on the wisdom of readers to decide for themselves on the respective claims to persuasivness of my original article and of Weiler/Haltern's response.
Weiler/Haltern state that `[t]he assumption that a Community without legislative Kompetenz-Kompetenz cannot contain a court with judicial Kompetenz-Kompetenz is at the core of [my] argument'; for them, this assumption is false. They claim also that I do not offer any proof for the assumption. It may be that the discussion of this point in my article was somewhat brief; so I seize this opportunity to expand on it. My central point is not the assumption that legislative Kompetenz-Kompetenz of an entity is an indispensable prerequisite of the judicial Kompetenz-Kompetenz of a court of that entity, although I consider that there is a strong prima facie case in favour of such an assumption. My central point is rather that, in the case of the ECJ, there are no sufficient indications for refuting this prima facie case, and this is what I shall try to demonstrate in this rejoinder. If this demonstration succeeds and the core of my argument is thus restored, I am confident that its remaining pieces will fall into place as well.
II. The jurisdiction of a court to decide on the `constitutionality' of a norm is at the borderline between judicial and legislative competences. Indeed, decisions of a court to quash a norm as unconstitutional have repeatedly been deemed to be `negative legislation'. Whilst this point is not relevant to the present discussion, the following question is: whether a court decision wrongly `maintaining' in force a legislative act issued outwith the competence of the issuing body is a (purely) judicial, or (also) a legislative act. As the original legislative act was, in the period between its enactment and the decision of the court, by definition either void or at least voidable, it is only the decision of the court which makes it valid. It follows that a decision of a court by which a void or voidable legislative act is (wrongly) declared to be valid must be considered to be an act of legislation. If one accepts this reasoning, the assumption that a Community without legislative Kompetenz-Kompetenz cannot contain a court with such Kompetenz-Kompetenz certainly gains in force.
Even if the above reasoning is not considered convincing, it is important to realize that a distinction must be drawn between the jurisdiction of an international court to decide on its own competences - a form of jurisdiction exercised by any international court - and the jurisdiction of such a court to decide on the legislative competences of the international organization of which it is an organ. It is the latter type of judicial Kompetenz-Kompetenz that is relevant in the present context. Contrary to the former type, it is not self-evident.
III. In discussing the connection between legislative Kompetenz-Kompetenz and judicial Kompetenz-Kompetenz of the latter type, it is useful to distinguish between two basic types of competence according to its holders i.e. legal entities on the one hand and their respective institutions on the other. The first, dubbed Verbandskompetenz in German, is a competence of the legal entity as such, in public law e.g. a township, a county, a state or an international organization. The fact that some kind of action is within the competence of a legal entity does not make it possible to state which institution of the entity may exercise that competence. On the other hand, the fact that some kind of action is outwith the competence of such an entity does make it possible to state that none of its institutions can perform that action.
The second type of competence, dubbed Organkompetenz in German, is the competence of the different institutions of a legal entity, in public law, in the case of a State, e.g. of the different branches of Government or of some special agencies. As institution of the legal entity, their competence is, in principle, circumscribed by the competences of the legal entity itself: the Organkompetenz can only exist insofar as there is Verbandskompetenz. All this is quite straightforward and even, I submit, self-evident. And it must follow, at least in principle, that the competences of the ECJ which, according to Art. 4 (1) ECT, is one of the institutions of the Community, do not go beyond the competences of the latter.
As to the Community, it appears to be common ground that its powers are `attributed - i.e. limited by the explicit or implicit grants in the Treaty, as interpreted by the rules of international law', in other words, that there is no Kompetenz-Kompetenz of the Community as such; the Verbandskompetenz of the Community does not include the competence to enlarge its own powers. From this it would follow, prima facie, that there cannot be a competence of any of the Community institutions - including the ECJ - to enlarge the powers of the Community. In addition, this consequence is expressly spelt out in the EC Treaty itself: according to Art. 164 ECT, `[t]he Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed'.
IV. It is this consequence which Weiler/Haltern call into question, even into a whole series of questions. But as they apparently fail to see the prima facie strength of the above argument, they are content to ask those questions and do not venture to attack it outright, although some lines of attack are implicit in their response. Indeed, there might be different lines of that kind open to them. A first line of attack, implicit in Weiler/Haltern's insistence that judicial Kompetenz-Kompetenz is something quite different from legislative Kompetenz-Kompetenz, might consist in claiming that whatever the ECJ decides, it does not amount to enlarging the Community's powers. To give a fictitious example: on that view, a judgment of the court maintaining in force a Commission regulation setting up a European army would not amount to such an enlargement. How is that point to be argued? One could propose that the ECJ is not acting on its own, in such a judgment, but only reacting, and that it is in reality the Commission that acted (doubly) ultra vires, outwith its Organkompetenz and the Community's Verbandskompetenz. But the fact remains that only the ECJ's judgment, according to the view of its judicial Kompetenz-Kompetenz, would validate the Commission regulation, and the co-operation of two Community institutions would enable the Community to go beyond its Verbandskompetenz. Therefore, it must be immaterial that the Court cannot `go it alone' but is dependent on the action of another institution and a relevant case being brought before it. So this line of attack must fail.
A second line of attack might consist in denying that the jurisdiction of the ECJ is limited by the Verbandskompetenz of the Community. Of course, it is open to Contracting States to conclude, under international law, one (or more than one) treaty setting up, on the one hand, an international organization with a certain Verbandskompetenz and, on the other, a court with its own distinct jurisdiction (in which case that court would have its own Verbandskompetenz probably equivalent to its Organkompetenz). Indeed, this is the case of the ICJ - according to Art. 92 of the UN Charter the UN's `principal judicial organ' - whose jurisdiction (including its Verbandskompetenz) is laid down, in Art. 36 of its Statute, quite independently of the powers of the political organs of the UN set out in the latter's Charter (to which the Statute, however, refers in part). Such a denial of the limitation of the ECJ's jurisdiction by the competences of the Community appears to be implicit in Weiler/Haltern's question why `the Treaties cannot establish a court, the ECJ, with judicial Kompetenz-Kompetenz (i.e., the power to be the ultimate arbiter of disputes concerning the extent of those limited competences) ...'. Indeed, as just indicated, there cannot be any reason why the Treaties (or, rather, the Member States by treaty) could not establish such a court. The question is rather whether they have done so.
Weiler/Haltern, I suppose, would affirm that the treaties have done so. They would rely on Arts. 173-177 ECT. And indeed, as stated in my original article, the ordinary meaning of these provisions appears to confer such a jurisdiction on the ECJ. The problem is to square these provisions with the equally clear provisions which confine the ECJ within the Verbandskompetenz of the Community i.e. Art. 4 ECT (`[t]he tasks entrusted to the Community shall be carried out by ... a Court of Justice') and Art. 164. This problem, it appears, has not even be addressed by Weiler/Haltern. So as not to repeat myself, may I refer in this connection to the discussion, in my original article, of the distinction between formal and material authorization which, I submit, supports the conclusion that the Member States have not established a court whose jurisdiction includes the competence conclusively to decide the respective competences of the Community and its Member States and, by this means, to go beyond the Verbandskompetenz of the Community as a legal entity. Therefore, the second line of attack must fail.
V. However, something close to addressing the problem of squaring the different provisions of the EC Treaty quoted above can be found in the rather curious last part of Weiler/Haltern's response: `Redefining the Decisive Question'. There, they assume that the ideas presented in my original article are fuelled by concerns not so much about the idea of a centralized court but about the performance of `this particular court', and they even express sympathy with such concerns. But discussing concerns about the performance of `this particular court' is tantamount to an argumentum ad personas and, as such, appears to me quite unacceptable in the present context. However, the argument of Weiler/Haltern reveals its true meaning, it is submitted, if read together with the solution they suggest to the problem of the performance of the ECJ i.e. the establishment of a Constitutional Council in the mould of its French namesake which `would have jurisdiction only over issues of competence ...', and with the proposed composition of that Council: `Its president would be the President of the ECJ, and its members would be sitting members of the constitutional courts or their equivalents in the Member States'. This proposed composition makes it clear that the Constitutional Council, which is portrayed by Weiler/Haltern as `a Union institution', would in fact belong to a level above the Community, distinct from but comprising both the Community and the Member States.
Seen in the light of this proposal, or rather the shortcoming which this proposal is meant to remedy, the true meaning of the apparent argumentum ad personas about the performance of `this particular court' appears to be an argumentum ad rem i.e. the argument that the ECJ as part of the Community level is, by reason of this very position, and not by reason of its particular performance, not above suspicion of bias in a case concerning the Community's Verbandskompetenz. Moreover, the fact that Weiler/Haltern consider this argument with some sympathy seems to indicate that they accept, at least in part and perhaps without realizing it, the ultimate correctness of my assumption that the European Treaties did not, in fact, establish a court having judicial Kompetenz-Kompetenz: the argument may well be taken in order further to buttress the other argument that the Member States, when concluding the European Treaties, cannot be understood as having given the ECJ jurisdiction to go beyond the Verbandskompetenz of the Community itself.
VI. There are two final points I wish to address. Weiler/Haltern claim that the solution advocated in my original article does not allow for a dialogue between the ECJ and national courts but rather provides for a national diktat. However, this is not the case. Rather, I have insisted on the national court's not taking a decision without the ECJ having been asked for its opinion. By those means, the national courts will be able to decide in full knowledge of the views of the ECJ, and this is what dialogue is all about. I would agree however that a judicial organ on a third, `supra-Community' level, composed as the Constitutional Council proposed by Weiler/Haltern but deciding on questions of Community and national competences, in a procedure akin to the one under Art. 177 ECT, on requests by certain national courts and the ECJ respectively, might offer a more adequate institutional framework.
Lastly, Weiler/Haltern detect in my original article `an unhappiness with the erosion of state sovereignty in a classical sense'. One may possibly derive such an impression by looking exclusively at the conclusions I draw. However, if one also takes into consideration the reasoning contained in my original article, one will find that I defend the pre-eminence, in questions relating to the respective competences of the Community and its Member States, not of `state sovereignty' but of courts constituted under a national constitution over the ECJ which was set up under international treaty law. This defence, at the present stage of the development of the Community, has more to do with the respect for the democratic credentials of the national constitutions in question than with the aspect of sovereignty. I submit that this evaluation of the respective democratic credentials of the national constitutions and of the founding treaties of the Community has influenced the drafting of the provisions, in those treaties, on the jurisdiction of the ECJ in such a way that a correct interpretation shows the ultimate pre-eminence of the national courts. To change this situation, which is admittedly rather unsatisfactory from the viewpoint of European integration, I have been pleading - without seriously expecting short-term success - for a European constitution to be voted by the European people. From this angle, the whole analysis of the possible foundations of an autonomous Community legal order in my original article should be read as an exhortation not to rely on the foundations that exist but to found the European Community on a constitution ordained by popular mandate. All efforts to found an autonomous legal order, i.e. an autonomous supremacy of Community law over national constitutions, including the pre-eminence of the ECJ over national courts, on any other basis, however sagaciously argued, are very much second best and, I submit, must ultimately founder.